New York Lawyer Learns Expensive Lesson
By Hunter B. Emerick
Saalfeld Griggs PC
AMEN, you say? Well, in this attorney’s sorrowful tale lies an important lesson for all businesses that serve the general public. The law calls those businesses public accommodations. That category includes attorneys, accountants, financial planners, health care professionals, insurance agents, grocers, restaurants, lodging places, retail stores, and banks, just to name a few. According to the Americans with Disability Act, places of public accommodations must give people with disabilities an equal opportunity to obtain the same results, benefits, etc. from the business as do non-disabled persons. This requirement applies regardless of the size of the place of public accommodation.
For the New York lawyer, who appeared to be a solo practitioner, this requirement meant that he had to pay for a qualified sign language interpreter for a deaf client who he represented in a divorce case. The attorney was required to provide a free, qualified sign language interpreter because that service was found to be necessary for effective communication with his client. Any place of public accommodation must provide auxiliary aids and services where necessary to insure effective communication with a person with disabilities. Because he failed to do so, the US Department of Justice required the attorney to waive his attorney fees, pay his client $2,200 and run an advertisement in two local publications saying that he would provide free sign language interpreters for any client with hearing disabilities. In Oregon, qualified sign language interpreters charge about $80 an hour. There have been similar cases raised against professionals in Salem, Oregon.
The New York lawyer argued that he was able to effectively communicate with his client by using pen and paper, communicating through the client’s sister who signed, although in a different language, and using qualified interpreters at the court hearings. These measures, however, were found lacking for a number of reasons. The client should not have been required to disclose intimate details of her divorce to her sister. Moreover, the sister’s interpretation was not effective because she had a hearing disability and was not certified to serve as an interpreter.
Of course, auxiliary aids and services are not limited to sign language interpreters or to people with hearing disabilities. The types of aids and services include Braille printed materials, over sized print materials, telephone handset amplifiers, teletypewriters, and others. This is not to say that every person with hearing disabilities must receive a qualified sign language interpreter at each place of public accommodation utilized by that person. The extent to which a public accommodation must provide auxiliary aids depends on the services offered and the customer’s disability.
Although a business may not surcharge for a customer with disabilities for the cost of providing auxiliary aids or services, it can consider whether those aids or services would create an undue burden on the business. Whether a particular aid or service creates an undue burden depends on the circumstances. Factors to be considered in analyzing the burden created by the aid or service requirement are:
- The nature and cost of the aid or service;
- The overall financial resources of the business;
- The number of employees;
- The effect on the operation of the business; and
- The effect on the resources and expenses of the business.
The lesson for all places of public accommodations is to be aware that businesses have an obligation to insure that any customer with a disability receives the same benefit, experience or result from the business as do customers without a disability from the business. If the disabled customer’s experience or result is not equivalent to that of a non-disabled customer, the business must provide auxiliary aids or services necessary to level the playing field. Although a common sense and practical solution may be to rely on the customer’s friends and family to provide the necessary support that may not be appropriate. Had the New York lawyer considered these issues, he would have collected his fees (less the cost of interpreter’s services), and kept the $2,200 paid over to his client.